Officer. It slows the B1/B2 visa train! Unlike the B1/B2,
with its on-line DS-160 form, there is also a lot of paper
associated with E-2s that the assembly line for high volume
visa adjudication cannot easily accommodate. E-2 visa, the E-2 is much more work. Therefore, whether
an applicant gets due consideration may be a matter of
chance, depending on the Consular Officer and his or her
visa chief.
On the other hand, I-526s are reviewed in an office set up
to serve the I-526, I-924, and I-829. AOs deal with fewer
applications, albeit much more paper. While a problematic
I-526 can be considered by an AO over the course of a few
days, Consular Officers are encouraged to decide cases
fast, get rid of the waiting applicant, and move on to the
never ending queue of prospective tourists. E-2 VISAS
ARE DIFFICULT TO HANDICAP
Consular Officers work in an up - or- out environment.
E-2 and EB-5 adjudications hurt their numbers, and are
eschewed as the type of thing that USCIS does; that is,
E-2s are not promotion fodder at State. Of the EB-5 or the
One can also make generalizations based upon historical
trends in I-526 adjudication by IPO. However, this can be
difficult to do for E-2s due to smaller sample sizes from
select posts, and because rapid turnover at consular posts
can affect continuity.
There is no Department of State “Policy Manual” like the
one at USCIS. As such, the Consular Officer, referring to
the FAM only, has more discretion than the USCIS AO. The
subjective E-2 requirements – namely substantiality and
marginality – are subject to the assessment – whims -
of individual Consular Officers. Conversely, a prima facie
showing on an I-526 requires a Request for Evidence
(RFE) as a matter of IPO policy. A Notice of Intent to Deny
(NOID) or a denial at IPO requires supervisory concurrence.
Additional review intuitively results in greater uniformity.
The USCIS Policy Manual has been compiled, to some
extent, based on the agency’s experience with the I-526.
There is no similar repository of knowledge – human or
documentary - at the Department of State. Therefore, E-2
success may depend on luck – which Consular Officer
you get. Perhaps a Consular Officer who has been a home
owner will treat an investment of $400,000 in a single
building to be renovated as insubstantial, while a Consular
Officer fresh out of graduate school who has never owned
property or seen $400,000 in one place might think the
money is fully “at risk.”
Personal experiences are brought to the workplace even
by USCIS AOs, but there are fewer institutional constraints
on the C onsular O f f ic e r whe n ac ting on his or he r
assessments. As such, predictions are harder for E-2s.
DON’T BE SO SURE THAT YOU
CAN RENEW AN E-2 FOREVER
One might think E-2 visas can be renewed forever. However,
Consular Officers have discretion as to duration of visa
vs. reciprocity or validity period, and there are constraints
related to reciprocity that must be explained to investors.
For example, a Ukrainian E-2 visa is valid for only three
months, and the visa holder gets only two entries. The
Ukrainian reciprocity period for a B1/B2 visa is five years,
and the visa holder gets multiple entries. That means that
the Ukrainian E-2 visa holder can’t leave the United States
and expect to return after three months, unless he or she
renews - and every renewal poses a risk of denial.
On the other hand, a Colombian gets a multiple entry
E-2 visa with a five-year validity period. The majority of
Colombian B1/B2 visa recipients receive a full validity
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